Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd

REASONS FOR JUDGMENT THE COURT: 1 This application for leave to appeal raises, in the first place, a narrow question of the application of Reg 30ZL of the Workplace Relations Regulations to a notice of intention to take AWA industrial action given pursuant to s 170WD of the Workplace Relations Act 1996 ("the Act"). That section provides : "(1) The immunity conferred by section 170WC in respect of AWA industrial action does not apply unless 3 working days' notice of the intention to take the action was given to the other party in the manner and form required by the regulations. (2) Notice need not be given by an employee under subsection (1) if the employer is taking general industrial action. (3) Notice need not be given by an employer under subsection (1) if the employee is taking general industrial action." 2 In the present case, a notice in the following form was served on each of the respondent's employees: "In accordance with Division 8 of Part VID of the Workplace Relations Act 1996, G & K O'Connor Pty Ltd ("O'Connors") gives you notice of AWA industrial action in the form of a lockout. · O'Connors seeks to make an Australian Workplace Agreement ("AWA") with you in relation to all of the matters set out in the AWA accompanying this notice. · It is proposed that your AWA have a nominal expiry date of 1 August 2002. · The lockout will commence on Thursday 19 August 1999 and will continue until you make an AWA with O'Connors in accordance with the terms and conditions of the AWA accompanying this notice. · You will not be required to attend for or perform any work at O'Connors from the commencement date set out in this notice. You will not be paid any wages for the period of the lockout." 3 Each notice was accompanied by a standard form letter in the following terms: "Dear Employee NEW LOCKOUT NOTICE Part of the information contained in this envelope is a copy of the G & K O'Connor Pty Ltd Australian Workplace Agreement ("AWA"). This AWA contains the terms and conditions of employment upon which G & K O'Connor Pty Ltd wishes to recommence processing. Due to legal requirements, the offering of new terms and conditions in an AWA means that a new Lockout Notice needs to be given to you. Please read the letter enclosed and, if you have any queries, contact Peter Allen or Steve Silberer on 59 412 033 within the next 14 days. Yours sincerely Kevin O'Connor Managing Director" 4 As well, the respondent served on each employee the following letter, also dated 14 August 1999, enclosing a proposed Australian Workplace Agreement ("AWA"): "Dear Employee G & K O'CONNOR WISHES TO RECOMMENCE PROCESSING The Company has held two meetings with employees and has generally outlined the terms and conditions of employment under which it would be prepared to recommence processing. The Company has considered the concerns expressed by some employees at these meetings and has made some changes to those term(s) and conditions, including some additional benefits. The Company has now decided to ask you and other employees to enter into AWAs containing these terms and conditions. The complete terms and conditions are contained in the enclosed G & K O'Connor Pty Ltd Australian Workplace Agreement ("AWA"). If you wish to accept the Company's invitation to recommence work under an AWA, this is what you should do: There are rules in place which regulate how AWAs can be made. Under those rules, you must have a copy of the AWA for 14 days prior to signing. Also enclosed is an Information Booklet, produced by the Employment Advocate's Office, which explains how Australian Workplace Agreements ("AWA") work and the function of the office of the Employment Advocate. We ask you to read both the G & K O'Connor Pty Ltd Australian Workplace Agreement and the Information Booklet carefully. If you have any questions about the AWA, or what it means for you, please contact Peter Allen or Steve Silberer on 59 412 033. We are happy for you to make an appointment to discuss your queries in person. Your current safety net award is the Federal Meat Industry (Processing) Award 1996. If you decided to return to work under an AWA, this AWA will operate to the exclusion of any other award or agreement that may currently govern the terms and conditions of your employment. If you wish to accept our offer to recommence processing at G & K O'Connor Pty Ltd we request that you: (a) Contact Peter Allen or Steve Silberer on 59 412 033 and advise them that you wish to accept the Company's invitation to recommence processing. Then, (b) bring your AWA to the plant at Pakenham. We will arrange for the AWA to be witnessed when you sign it. Please remember that the signing of the AWA cannot be done until you have had the AWA for 14 days. I look forward to you accepting our invitation to recommence processing under the terms and conditions in the G & K O'Connor Pty Ltd Australian Workplace Agreement." 5 Regulation 30ZL of the Workplace Relations Regulations provides: "For subsection 170WD(1) of the Act, a notice must be in writing and must include, or be accompanied by, particulars of: (a) any matter that the party intending to take the action proposes as a matter that should be dealt with by the AWA; and (b) the proposed nominal expiry date of the AWA; and (c) the proposed date or dates on which the action will take place; and (d) the proposed duration of the action; and (e) the proposed nature and form of the action." 6 It is to be borne in mind that Reg 30ZL requires a notice of intention to take AWA industrial action to include, or be accompanied by, certain "particulars". It is trite law that the function of particulars is to apprise a recipient of a pleading or notice of the items, details or points of what is being asserted by the author of the document. Thus, in Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554, Sheppard J, with whom Beazley J agreed, said, at 560: "In reaching my conclusion I have taken into account the fact that it is particulars which cl 20 requires. I bear in mind also that cl 20(2) uses the word "specify". Accordingly, an offeror must do the best it can to be particular and specific about its intentions. Nevertheless the document is dealing with a commercial situation. It is being delivered in a context in which the offeror does not have control of the target company. In those circumstances it is not only reasonable, it is also necessary, for it to express itself in a guarded way. If it does not do this, it runs the risk that statements it makes may, because of their very particularity, be found to have been misleading. To my mind the statements made in the offer to which I have so far referred give a fair indication to potential acceptors of the offer of what the appellant's intentions are." 7 It was submitted on behalf of the applicants that the notice in the present case did not give particulars of the proposed date, or dates, on which the AWA industrial action would take place because it specified only a commencing a date and did not stipulate the date on which the lockout would end. By notifying the recipient that the lockout will "commence on Thursday 19 August 1999 and will continue until you make an AWA with O'Connors", the present notice, it was submitted, failed to comply with the requirement imposed by Reg 30ZL(c) to provide particulars of the proposed date or dates on which the action would take place. 8 In our view, it is sufficient if each date on which the lockout is to occur can be gathered from the four corners of the documents served on the employee. In the present case, the recipient of the notice should have been under no misapprehension that the respondent proposed that the lockout would commence on 19 August 1999 and continue from day to day thereafter until the employee should make an AWA or until 1 August 2002, whichever should first occur. 9 Similar considerations apply to the argument that the notice failed to comply with Reg 30ZL(d) in that it did not afford particulars of "the proposed duration of the action." It may be that para (d) is directed to the duration of action which is proposed to occupy less than the whole of the day of which particulars have been given in accordance with para (c). Thus, if it be proposed that the lockout should occur, eg between 12 noon and 2.00 pm on each of the days on which the lockout is proposed to take place, the requisite particulars accompanying the notice should say so. However, the present notice, in its ultimate paragraph, makes clear that the lockout, in the sense of preventing the employee from performing work, is proposed to continue for the whole of each day on which the proposed lockout is to occur. Even if "duration" in para (d) signifies the whole period of days over which the industrial action is proposed to continue, that requirement has been satisfied by the present notice. "Duration" in that sense can be indefinite depending on the specified event, the date of which cannot be specified with certainty at the time when the notice is given, or which may not happen at all. In our view it is sufficient if the determining event is specified with sufficient particularity to enable the recipient of the notice to ascertain the event which will bring the proposed action to an end. 10 It was also argued on the application for leave to appeal that the proposed notice did not satisfy para (e) of Reg 30ZL because it failed to specify the proposed nature and form of the action. By way of illustrating that deficiency, Mr Rothman SC, who appeared with Mr White for the applicants, pointed to the fact that the notice did not indicate whether or not the employee to whom it was addressed would receive payment for public holidays or periods of sick leave occurring while the lockout was in force. 11 However, the defined meaning of the verb "lockout" in s 170WB is "(to) prevent the employee from performing work under a contract of employment without terminating the contract". If an employee is locked out then s 170WC(3) provides that the employer is entitled to refuse to pay the employee remuneration in respect of the lockout. 12 The notice in the present case tells an employee that he or she is locked out and declares at the third dot point that the employee is not required to attend for work. It also declares that the employee will not be paid any wages for the period of the lockout. It is palpably clear that the notice constitutes a direction not to attend for work and a declaration that no work will be provided and no payment of wages made. In this way, the notice specifies the proposed nature and form of the action. It may be that the combined effect of s 170WB and s 170WC(3) is not to absolve the respondent entirely from any award or contractual obligation to pay wages on days on which an employee is not obliged to attend for work which may include public holidays and periods of sick leave. However, the existence of any entitlement to payment does not alter the character of what the respondent proposed by way of industrial action. Whether there is any obligation to pay which subsists notwithstanding the employer's industrial action can, if any employee wishes, be tested in proceedings to enforce the alleged obligation. 13 Leave to appeal should be refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.